In this case, the Prothonotary refused to strike a Statement of Claim brought pursuant to s. 8 of the NOC Regulations, and this decision was upheld by the Federal Court Judge (decision here). The FCA upheld the decision.
The underlying facts alleged by Teva are complicated and relate to a number of different patents and proceedings. They are set out in the addendum to the Federal Court decision cited above. However, a prohibition order was granted to Pfizer, against Teva, on appeal of one NOC Proceeding and that patent was later found invalid in an impeachment action brought by Teva.
The FCA held that this was not an appropriate case to resolve any uncertainty in the test with respect to de novo appeals of Prothonotary’s decisions. Furthermore, the FCA held that the law relating to s. 8 of the NOC Regulations is still evolving, thus it is not plain and obvious that the claim is doomed to fail.